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Donald Trump seems to have signed an executive order to start the construction of the border wall between the US and Mexico:

Sec. 4. Physical Security of the Southern Border of the United States. The Secretary shall immediately take the following steps to obtain complete operational control, as determined by the Secretary, of the southern border:

(a) In accordance with existing law, including the Secure Fence Act and IIRIRA, take all appropriate steps to immediately plan, design, and construct a physical wall along the southern border, using appropriate materials and technology to most effectively achieve complete operational control of the southern border;

(b) Identify and, to the extent permitted by law, allocate all sources of Federal funds for the planning, designing, and constructing of a physical wall along the southern border;

(c) Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years; and

(d) Produce a comprehensive study of the security of the southern border, to be completed within 180 days of this order, that shall include the current state of southern border security, all geophysical and topographical aspects of the southern border, the availability of Federal and State resources necessary to achieve complete operational control of the southern border, and a strategy to obtain and maintain complete operational control of the southern border.

So, does the construction of the wall still require congressional approval? And where does the funding come from?

Non-opinionated answers with sources are appreciated.

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    Executive orders don't require congressional approval to create. However, if there is federal budget involved in building the wall, then yes, congress would have full say on appropriating the budget for it. Of course, Trump has said Mexico will pay for it. So, I guess we'll see how he pulls that off. – user1530 Jan 26 '17 at 3:21
  • It already has congressional approval. – hownowbrowncow Jan 26 '17 at 15:13
  • @hownowbrowncow Really? Can you provide me with a source, thanks! – Panda Jan 26 '17 at 15:15
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No the construction of the wall doesn't need congressional approval, but it will not be able to go forward until it gets funding from Congress

As mentioned by Sabbahillel, the laws regarding the border wall have already been passed, so Trump definitely doesn't need congressional approval to start this project. Moreover, there are good argument to be made that the entire wall construction would fall under the prevue of the executive branch, so not much legislative approval would be required.

However, the executive order is still largely moot at the moment. As you noticed the question of funding for this project has not been answered yet, and a project like this will require a lot of funding. As Congress has the power of the purse, President Trump will not be able to create funding for the wall out of thin air. Even if tariffs on Mexico get instituted, he won't be able to pay for the wall until the legislature appropriates funding for the wall project.

  • Same comment as before...does that law actually accommodate Trump's wall? It appears to be very specific about being for a fence...a fence that I believe has already been built. – user1530 Jan 26 '17 at 8:15
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    @blip The Secure Fence Act was giving Bush the necessary funding for building his fence. I haven't checked but I would be surprised if there is still anything left in that budget today. Border security is an executive duty (Homeland Security, to be specific), and it's up to them how specifically they fulfill that duty... as long as it is within their budget. Trump would need a new act not to be allowed to build the wall but to get the budget for one. – Philipp Jan 26 '17 at 12:04
  • @blip There is some very limited fencing. But I think it's less than 10% of the entire border. – K Dog Jan 26 '17 at 13:20
  • I added to my post showing where Congressional approval is required and where it is not. The order includes identifying what can be done within the department budget and what needs to be requested within the future department budget and what needs specific budgeting. – sabbahillel Jan 26 '17 at 14:17
  • @blip No, they never finished the fence. It's roughly half finished. – Brythan Jan 26 '17 at 19:44
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According to the news reports, the law authorizing the wall has already been passed. As a result, President Trump issued an executive order to go ahead and build the wall relying on that law. The order itself does not need Congressional approval and the authorization was passed in the original law. The order says that

  1. Analysis must be done to continue implementing the law
  2. Funds that have been allocated but not spent and are still available must be used (which does not require additional consent). This includes money that is part of the budget allocated to the appropriate departments that each department can use for the project.
  3. Future funds that must be put in the budget are to be identified so that Congressional consent can be requested.
  4. A full survey of the border must be done so that we can know what was done and what still needs to be done within what was already approved.
  5. If something that needs to be done has not been approved within the already passed law, then identify it so that it can be submitted to Congress.

The quoted order says

(a) In accordance with existing law, including the Secure Fence Act and IIRIRA

Start planning and identifying what needs to be done to complete design and manufacture of what the president calls the wall and what the original law called a "fence" or other documents called a barrier.

This will not be a complete wall along the whole border but will be a mix of technologies and methods that will be appropriate to each different area along the border. Those parts that have already been built are not continuous but depend on the terrain and the circumstances.

As far as funding of the wall is concerned, the president has said that eventually it will come from Mexico. Others say that the decrease in welfare costs for illegal immigrants will cover it. Others say that Congress has already authorized the appropriate spending. However, we will have to wait and see what happens now. This is a separate discussion and is not part of the order.

Additionally, part of the order is to

(b) Identify and, to the extent permitted by law, allocate all sources of Federal funds

which means that part of the order is to use funds already authorized for the payment of this construction. That is, the appropriate departments are to identify what funds are available within the current budget for construction and maintenance of the border. If appropriated or allocated funds are identified but have not been used, then they are to be used.

The next part is to identify what funding must be put into future budget requests so that the appropriate legislation can be sent to Congress for future approval. Note that there is a difference between the general budget for the appropriate departments that can be allocated to the project and specific funding that must be passed as belonging to a separate line item within the budget that will be part of the project.

(c) Project and develop long-term funding requirements for the wall, including preparing Congressional budget requests for the current and upcoming fiscal years;

The last part is to perform a full survey of the border so that the the appropriate departments will know what actually has to be done and what technologies are required. It must also identify what state resources are available for the project (either already allocated or to be passed by the states) as well what resources are already allocated by the Federal government as well as what Federal resources need to be put in Congressional funding bills.

For example if a certain amount of concrete has already been purchased for the project, then it can be used without further congressional approval.

With Senate Vote, Congress Passes Border Fence Bill

By Jonathan Weisman
Washington Post Staff Writer
Saturday, September 30, 2006

The Senate gave final approval last night to legislation authorizing the construction of 700 miles of double-layered fencing on the U.S.-Mexico border, shelving President Bush's vision of a comprehensive overhaul of U.S. immigration laws in favor of a vast barrier.

Bush signs law to build fence at US-Mexico border Friday, October 27, 2006

Today U.S. President George W. Bush signed into law the Secure Fence Act of 2006, a plan to build a 700 mile (1,125 kilometer) fence between the United States and Mexico, to prevent illegal immigration. Mexico has expressed strong opposition to the fence, which covers about one third of the total border length.

  • That bill seems very clear as to it applying to a fence rather than a wall. Also, I believe that fence has already been built, no? – user1530 Jan 26 '17 at 3:22
  • @SJuan76 The executive order as quoted states that it is to be done in accordance with already passed federal law. I identified the law that is being referenced. – sabbahillel Jan 26 '17 at 10:57
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    @blip According to other news reports, the full construction in the original law has not been done. Part of the order is to identify what has been done, what still needs to be done and how to do it. Also part of the order is to identify the methods required. The law and the order speak of a "barrier" it is the media that try to say a "fence" or a "wall" – sabbahillel Jan 26 '17 at 11:04
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    Not accurate. There is a legal basis, overall, but the appropriations must also pass before money can be spent for that purpose. Since the funds being used were already appropriated for other legal and authorized use, there is only a limited sliver of space where the authorized spending might be interpreted as overlapping with wall construction. Also, what passed in the mid-2000s is not, at all, the same as the "Great Wall of Trump" that he ran on. – PoloHoleSet Jan 26 '17 at 17:19
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    @sabbahillel - If he wants to use the funds for anything over and above what was authorized in the 2006 law (not dollar amounts, but scope, size, scale of projects), then, yes, it DOES matter what he ran on, if that's what he's ordering them to start work on, because that's not already authorized by law. When you say that the law authorizing "the wall" has already been passed.... a law authorizing a wall has, but not THE wall, per se. For instance, that law actually authorized fencing, not entirely continuous, if memory serves, and has been completed, for the most part. – PoloHoleSet Jan 26 '17 at 17:55

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